Thursday, July 12, 2007

Rape : Insertion of a finger into the genital or anus of another

Republic Act 8353 (R.A. 8353) or the “Anti-Rape Act of 1997″, which amended Chapter III, Title 8 of the Revised Penal Code, expanded the definition of rape. The crime of rape now includes the insertion of the penis into another person’s mouth or anal orifice, or any other instrument or “object”, into the genital or anal orifice of another person (Paragraph 2 of Art. 266-A).

Does the INSERTION of a FINGER into the genital or anus of another qualify as RAPE through sexual assault? Let us examine how the executive and judicial departments construed paragraph 2, Art. 266-A, and what was the legislative history of the statute.

A) Executive construction

On 28 September 2000, the Department of Justice (DOJ) came out with its official interpretation of rape through sexual assault and it concluded that the insertion of a finger into a woman’s vagina is not rape under R.A. 8353 (DOJ’s Memorandum Circular No. 22).

B) Judicial Construction

1. People of the Philippines vs. Camilo Soriano (G.R. No. 142779-95, 29 August 2002) – the Supreme Court affirmed the judgment of the trial court finding appellant guilty of 12 counts of rape (insertion of his finger into the vagina of his 11-year old daughter) under paragraph 2 of Art. 266-A.

2. People of the Philippines vs. Remario Palma (G.R. No. 148869-74, 11 December 2003) – the appellant is guilty of rape through sexual assault when he inserted his finger into the vagina of his victim. This is one of the significant amendments introduced by the new law, thus making the insertion of any instrument, object, or any part of the human body other than the sexual organ into the genital or anus of another person as rape and not merely acts of lasciviousness.

C) Legislative History of the Statute

There is indication from legislative history of the intention to include “finger” within the contemplation of the phrase “or any other instrument or object”. The Congressional deliberations on the bill could be of help. Here are some excerpts from Senate Deliberations dated 24 July 1996 on Senate Bill No. 950 (now RA 8353).

Senator Sotto : Mr. President, at the outset, may I state that I am in full support of this bill and its intentions. Having said that, may I now be allowed to ask few questions x x x which pertains to the consummation of the crime of rape. Section 3 (referring to the draft bill) states: The slightest contact on any part of his body other than the sexual organ or any object or instrument, or any part of the animal used by the offender with the genital or anus of the offended party under paragraphs 3 and 4 of Section 2 shall consummate the crime of rape. I’m concerned, Mr. President x x x May I know what is meant by this phrase and how it is construed x x x. (italics supplied)

Senator Shahani : Yes, Mr. President the slightest contact of any part of the body of a man with the genital or anus of a woman x x x shall consummate the crime of rape. (italics supplied)

Senator Santiago : Mr. President x x x Section 3 redefines rape as committed by any person who shall insert any part of his body other than the sexual organ or who shall introduced any object or instrument into the genital or anus of another. (italics supplied)

The interpretation of DOJ defies the very essence of common sense. It suggests that the insertion of a finger is less offensive than the insertion of other objects into the woman’s genital. The Supreme Court’s definitive construction of RA 8353 has repaired this unsound interpretation.

It is interesting to note that Sen. Kiko Pangilinan had filed Senate Bill No. 1407 on 7 July 2004 introducing amendment to paragraph 2 of Art. 266-A by inserting the phrase “or any other part of the body” immediately after the word “object”. The status of the bill as of 4 January 2007 - read on first reading and referred to Committee on Justice and Human Rights; and Youth, Women and Family Relations.

If this Bill is enacted into law, it shall definitely fortify the judicial interpretation of RA 8353 and make it totally and permanently free from unsound construction.

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